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P   Drafting  Court 
Motions  and  Orders 


Modem  American  Law  Lecture 


,BIack8tone  Inatitute,  Chicago 


DRAFTING  COURT 
MOTIONS  AND  ORDERS 


BY 


HENRY  H.  INGERSOLL,  M.A.,  LL.D. 


One  of  a  Series  of  Lectures  Especially  Prepared 
for  the  Blackstone  Institute 


BLACKSTONE   INSTITUTE 
CHICAGO 

Copyright,    1920,    by   Blackstone    Institute 


T 

In  454d        HENRY  H.  INGERSOLL 

The  death  of  Mr.  IngersoU  in  April,  1915,  de- 
prived the  American  Bar  of  one  of  its  most  bril- 
liant members  and  the  state  of  Tennessee  of  one  of 
her  foremost  citizens.  His  long  career  as  a  lawyer, 
statesman  and  educator  has  made  his  name  familiar 
throughout  the  United  States. 

He  was  bom  in  Oberlin,  Ohio,  January  20,  1844. 
He  attended  Oberlin  College  and  graduated  from 
Yale  University  in  1863.  He  studied  law  in  Cin- 
cinnati and  was  admitted  to  the  Tennessee  bar  in 
1865. 

For  a  number  of  years  Mr.  IngersoU  was  Assist- 
ant Attorney  General  of  the  State  of  Tennessee  and 
in  1879  was  appointed  a  judge  of  the  Supreme 
Court  of  the  state,  serving  in  that  capacity  until 
1880.  In  1884  he  was  appointed  a  special  judge  of 
the  Supreme  Court.  He  acted  as  Dean  of  the  Law 
Faculty  of  the  University  of  Tennessee  from  1891 
up  to  the  time  of  his  death,  and  his  faithful  service 
and  scholarly  mind  made  the  school  one  of  the 
foremost  educational  institutions  in  the  South. 

Mr.  IngersoU  has  occupied  many  positions  of 
honor  and  trust.  In  1887  and  1888  he  was  Presi- 
dent of  the  Tennessee  State  Bar  Association,  and 
from  1907  to  1912  was  Vice-President  of  the  Ameri- 
can Bar  Association.  Besides  acting  as  Dean  of 
the  University  of  Tennessee  Law  School,  he  was 
appointed  a  Trustee  of  Emory  and  Henry  College 
and  the  University  of  the  South. 

Probably  Mr.  IngersoU  wiU  be  best  remembered 
as  an  author.  He  edited  "Barton's  Suits  in 
Equity";  was  the  author  of  "IngersoU  on  Public 
Corporations";  "Municipal  Corporations"  and 
"Towns"  in  Cyc  and  "Law  of  Municipal  Corpo- 
rations" in  Modem  American  Law, 

An  experience  of  fifty  years  in  the  legal  profes- 
sion makes  Mr.  IngersoU 's  writings  of  intense  inter- 
est to  the  student  of  law.  His  untarnished  reputa- 
tion on  the  bench,  his  scholarly  accomplishments, 
and  his  devotion  to  the  profession  which  he  made 
his  life 's  work  furnish  an  illustrious  example  to  the 
student  who  aspires  to  the  highest  standards  of 
citizenship. 


3 

01 


DRAFTING  COURT  MOTIONS 
AND  ORDERS 

By 

Henry  H.  Ingersoll,  M.A.,  LL.D. 

Motions  and  orders  are  not  necessary  parts  of  a 
proceeding  at  law  or  in  equity ;  they  are  merely  inci- 
dental, but  very  useful.  By  this  you  understand  that 
a  lawsuit  may  be  brought,  conducted  and  concluded 
without  either  a  motion  or  an  order,  and  many  have 
been  so  brought,  conducted  and  disposed  of.  But  this 
is  not  common — the  records  of  most  equity  suits  show 
motions  and  orders.  Such  things  are  the  mere  inci- 
dents of  a  lawsuit;  some  suits  show  them  and  some 
do  not. 

MOTIONS 

A  motion  is  an  application  to  a  court  or  judge  for 
some  order  to  be  made  in  the  case  which  will  facili- 
tate its  progress  or  disposition.  Motions  are  usually 
oral  and  made  in  open  court.  If  made  to  a  judge, 
and  not  in  open  court,  they  are  usually  in  writing 
and  upon  notice.  In  such  case  they  closely  resemble 
petitions,  and  serve  much  the  same  purposes  in  prac- 
tice. They  are  commonly  regulated  by  statute  or  by 
rule  of  court. 

In  various  states  the  practice  in  regard  to  them  is 
quite  different,  so  that  before  a  lawyer  enters  upon 

5 


6  MODERN  AMERICAN  LAW  LECTURE 

the  delicate  business  of  making  motions  in  a  cause 
in  court  he  must  needs  be  familiar  with  the  rules 
which  govern  their  making  and  disposition,  else  he 
will  be  liable  to  false  steps  and  failures.  There  are, 
however,  certain  general  rules  of  practice  known  to 
the  common  law  and  observed  in  nearly  all  courts, 
which  are  not  generally  regulated  and  controlled  by 
statutory  or  judicial  rules  of  procedure;  and  these 
will  be  the  subject  of  this  Lecture. 

Motions  are  made  by  attorneys  for  plaintiffs  when 
they  desire  some  permission  or  privilege  or  right 
which  does  not  come  necessarily  in  the  regular  course 
of  the  procedure  in  a  case,  as  for  example:  When 
an  amendment  is  needed  either  in  the  process  or 
pleading ;  or  when  alias  process  is  needed ;  or  a  guard- 
ian ad  litem;  or  a  judgment  by  default;  or  an  attach- 
ment ;  or  an  order  of  reference ;  or  any  other  step  in 
the  progress  of  a  case  which  will  remedy  defects,  im- 
prove the  form  or  substance,  or  expedite  the  trial  or 
final  disposition  of  the  case. 

So  also  motions  may  be  made  by  attorneys  for  de- 
fendants for  any  appropriate  order  or  step  which 
they  think  will  aid  them  in  making  or  perfecting 
their  defense,  as  for  example :  A  motion  to  dismiss 
the  plaintiff's  suit  because  he  has  given  no  bond  for 
costs ;  or  because  the  bond  given  is  insufficient ;  or  be- 
cause the  court  has  no  jurisdiction  either  of  the  de- 
fendant or  the  subject  matter  of  the  suit ;  or  because 
the  plaintiff  is  not  competent  to  sue,  by  reason  of 
marriage  or  non-age ;  or  because  plaintiff  has  not  filed 
his  declaration  or  petition  in  due  time;  or  because 
process  has  not  been  duly  served  upon  defendant; 


'¥ 


DRAFTING  COURT  MOTIONS  AND  ORDERS  7 

or  motion  for  further  time  to  be  allowed  defendant 
in  which  to  answer  or  make  defense. 

These  will  suffice  to  illustrate  the  steps  which  may 
be  taken  by  plaintiff  or  defendant  by  motion,  it  being 
understood  that,  when  either  party  wishes  some  or- 
der made  which  does  not  come  in  due  and  regular 
course  of  procedure,  the  motion  is  the  proper  method 
to  bring  it  to  the  attention  of  the  court  and  obtain 
the  order  desired. 

If  the  matter  upon  which  the  party  applying  for 
the  order  bases  his  application  or  motion  appears 
already  in  the  record  or  papers  in  the  case,  no  fur- 
ther showing  is  needed  as  the  basis  of  the  motion,  as 
for  example :  If  the  amount  sued  for  is  so  small  as 
to  be  beneath  the  dignity  of  the  court;  or  is  a  tract 
of  land  outside  the  state  where  the  court  is  held;  or 
the  papers  fail  to  show  any  cost-bond  or  any  declara- 
tion or  petition  filed,  the  defendant  may  make  his 
motion  without  any  additional  showing ;  and  so  like- 
wise may  plaintiff  enter  a  motion  where  the  defend- 
ant has  been  served  with  process  and  has  failed  to 
appear  or  answer  in  due  time.  But  where  the  basis 
of  fact,  upon  which  either  party  makes  a  motion  or 
asks  an  order  from  the  court,  does  not  appear  in  the 
record  or  papers  of  the  case,  then  an  affidavit  is  nec- 
essary, so  that  it  may  appear  to  the  court  prima  facie 
that  there  is  a  basis  of  fact  on  which  to  rest  the  order 
desired.    For  example: 

Plaintiff  has  brought  a  suit  for  partition  of  a  farm 
against  his  brother  and  sister;  and,  after  lapse  of 
time  within  which  regularly  he  should  have  made 
application  to  amend,  he  learns  that  his  sister  has 


8  MODERN  AMERICAN  LAW  LECTURE 

married,  and  his  brother  has  conveyed  one-half  of  his 
interest  to  a  stranger.  It  becomes  necessary  for  him 
to  make  the  stranger  and  the  husband  both  additional 
parties  defendant  to  his  suit,  and  he  must  make  affi- 
davit of  these  facts  as  newly  discovered  so  as  to  ob- 
tain the  desired  order  for  process  necessary  to  bring 
the  husband  and  the  stranger  before  the  court. 

Or,  suppose  that  defendant  wishes  to  question^  the 
authority  of  plaintiff  to  sue  because  she  is  a  married 
woman,  or  a  minor,  and  therefore,  moves  to  dismiss 
the  case ;  he  must  file  an  affidavit  of  the  fact  of  non- 
age and  marriage  as  the  basis  of  his  motion,  so  that 
the  court  may  have  prima  facie  evidence  of  the  facts 
necessary  for  the  desired  order.  And  so,  also,  if  the 
defendant  moves  for  better  security  on  the  cost  bond, 
he  must  file  an  affidavit  of  the  insolvency  or  insuffi- 
ciency of  the  present  surety.  And  so  in  every  case, 
the  party,  either  plaintiff  or  defendant,  asking  an 
order  of  the  court  because  of  matter  dehors  the  rec- 
ord must  make  this  essential  matter  apparent  by  af- 
fidavit. 

Among  the  motions  commonly  made  on  behalf  of 
plaintiff  are :  (1)  Such  as  are  necessary  to  bring  the 
defendant  before  the  court  for  an  alias  smnmons  or 
a  judicial  attachment,  or  such  other  process  as  the 
state  allows  for  that  purpose.  (2)  Motion  to  correct 
or  perfect  pleadings,  as,  to  amend  a  declaration  or 
petition,  or  to  file  an  amended  or  supplemental  declar- 
ation or  petition.  (3)  Motion  to  produce  an  issue,  as, 
for  a  judgment  by  default ;  or  for  a  guardian  ad  litem; 
or  for  an  order  on  defendant  to  answer,  or  to  have  a 
case  revived  against  the  representative  of  the  defend- 


DRAFTING  COURT  MOTIONS  AND  ORDERS     9 

ant  who  has  died  pending  suit.  (4)  To  prepare  the 
case  for  trial,  as,  to  strike  some  improper  pleading 
from  the  file,  or  to  compel  the  defendant  to  answer 
certain  specific  written  interrogatories  duly  filed  in 
the  case.  (5)  To  protect  or  enforce  rights  pending 
suit;  as,  motion  for  an  injunction  or  a  restraining 
order;  for  a  receiver,  or  for  alimony;  or  for  an  at- 
tachment for  the  person;  or  for  any  other  order  or 
step  necessary  or  proper  to  improve  or  correct  the 
process  or  pleadings  in  the  case,  to  expedite  the  trial, 
or  to  protect  the  property  or  rights  of  the  plaintiff. 
Many  orders  may  become  proper  or  necessary  for 
defendant  in  the  progress  of  a  case,  such  as :  (1)  Mo- 
tions looking  to  the  dismissal  of  the  suit ;  for  exam- 
ple: motions  to  require  plaintiff's  attorney  to  show 
his  authority  for  bringing  suit.  (2)  Motion  for  a 
better  prosecution  bond;  motion  to  dispauper  the 
plaintiff;  motion  to  require  plaintiff  to  take  neces- 
sary steps  for  his  suit ;  motion  to  dismiss  the  suit,  or 
to  abate  it,  in  case  of  the  death  of  plaintiff.  (3)  Mo- 
tions to  improve  or  perfect  defects ;  as,  motion  to  re- 
quire plaintiff  to  elect  between  this  and  another  suit 
for  the  same  purpose;  motion  for  time  to  make  an- 
swer or  defense;  motion  for  leave  to  withdraw  a 
pleading ;  or  to  file  an  additional  pleading ;  or  to  set 
up  a  cross-action  by  way  of  defense ;  motion  to  allow 
a  wife  to  answer  separately  from  her  husband;  mo- 
tion to  strike  pleadings  from  the  file  because  im- 
proper or  impertinent.  (4)  Motion  to  vacate  or  mod- 
ify orders  already  made ;  as,  to  set  a  side  a  judgment 
by  default ;  or  to  dissolve  an  injunction ;  or  to  vacate 
an  order  appointing  a  receiver ;  or  to  discharge  prop- 


10  MODERN  AMERICAN  LAW  LECTURE 

erty  from  levy  made  thereon.  These  will  fairly  rep- 
resent the  motions  which  may  be  made  respectively 
by  plaintiff  and  defendant. 

There  are  many  motions  which  are  open  alike  to 
either  plaintiff  or  defendant,  according  to  the  nature 
and  status  of  the  case,  such  as:  (1)  Motions  in  re- 
gard to  evidence  by  deposition  when  it  is  desired  to 
require  the  opposite  party  to  produce  documents ;  or, 
motion  to  give  special  notice  of  the  deposition,  or  to 
extend  the  time  for  taking  proof  beyond  that  usually 
allowed ;  or  to  re-examine  a  witness  whose  deposition 
has  already  been  filed.  (2)  Motions  in  regard  to  re- 
ports ;  such  as,  motions  to  refer  the  case  to  referee ; 
to  prescribe  the  time  or  conditions  of  the  hearing  be- 
fore him,  or  the  making  of  his  report ;  motion  to  re- 
commit a  report  already  made,  or  to  confirm  the 
same.  (3)  In  equity  or  chancery  cases,  motion  to 
confirm  a  sale  of,  land ;  or  to  set  it  aside ;  motion  to 
open  biddings ;  or  to  revive  an  order  of  sale.  These 
and  similar  motions  are  open  to  either  party  alike 
whenever  desired  by  him  for  the  purpose  of  obtain- 
ing or  protecting  his  rights  in  the  premises.  The 
intent  and  effect  of  the  several  motions  may  be  im- 
plied or  understood  from  the  words  and  phrases  used 
in  each  motion;  but  they  will  be  further  explained 
when  we  are  considering  the  orders  made  by  the  court 
upon  motion  of  either  party. 

CLASSIFICATION  OF  MOTIONS 

In  many  states  motions  are  classified  in  practice, 
as:  (1)  motions  of  course,  (2)  special  motions.  Mo- 
tions of  course  include  all  those  motions  which  are 


DRAFTING  COURT  MOTIONS  AND  ORDERS    H 

granted  as  a  matter  of  course.  This  results  gener- 
ally from  failure  of  a  party  to  comply  with  some  or- 
der or  rule  of  court,  or  some  statute,  and  does  not 
require  notice  to  the  opposite  party;  or  even  the 
action  or  judgment  of  the  court  in  the  premises  in- 
stead of  the  order  of  the  court  or  judge,  a  formal 
order  of  course  is  entered  by  the  clerk  upon  the  face 
of  the  papers  or  record  as  it  stands  at  the  time  of  the 
motions.  This  class  of  motions  includes  those  based 
upon  failure  of  either  party  to  comply  with  any  spe- 
cial order  of  the  court,  or  rule  of  court,  or  rule  of  law, 
for  the  doing  of  some  act  in  a  specified  time  or  by 
particular  date ;  and  it  may  be  so  serious  as  to  involve 
the  dismissal  of  the  suit  for  a  mere  formal  default. 
Thus,  in  the  practice  in  the  federal  court  on  the 
equity  side,  no  special  pleading  may  be  filed  by  the 
plaintiff  in  response  to  the  defendant's  answer,  but 
only  a  general  replication  of  a  prescribed  form,  like 
the  following: 

''This  replient  saving  and  reserving  all  advantage  of  excep- 
tion to  manifold  insufficiencies  of  the  answer  for  replication 
thereto,  saith :  That  he  will  aver  and  prove  his  bill  to  be  true 
and  sufficient,  and  that  the  said  answer  is  untrue  and  insuffi- 
cient.   Wherefore,  he  prays  relief  as  in  said  bill  set  forth.'* 

It  is  hard  to  imagine  a  more  formal  and  less  scien- 
tific and  significant  sample  of  pleading  than  this  gen- 
eral replication.  Apparently,  the  case  could  be  tried 
and  disposed  of  just  as  completely  and  effectually 
without  this  formal  pleading  as  with  it ;  and  yet,  un- 
der the  former  rule  of  practice  in  equity  in  the 
United  States  courts,  the  complainant  was  bound  by 


12  MODERN  AMERICAN  LAW  LECTURE 

the  rule  day  next  succeeding  the  rule  day  on  which 
the  answer  was  filed  to  file  this  general  replication 
and  thus  complete  the  issue  in  the  cause.  For  com- 
plainant's failure  to  do  this,  the  defendant  was  en- 
titled, as  of  course,  to  an  order  for  the  dismissal  of 
the  suit,  which  did  not  require  hearing  before  a  judge, 
but  would  be  entered  by  the  clerk  of  the  court  upon 
the  defendant's  motion. 

Special  motions,  on  the  contrary,  are  all  required 
to  be  presented  to  the  court  or  a  judge  thereof  at 
chambers  for  his  consideration  and  decision ;  and  the 
matter  thereof  includes  all  other  subjects  and  forms 
of  motion  than  the  "motions  of  course."  In  many 
states  all  special  motions  are  required  to  be  reduced 
to  writing  before  offered  for  consideration;  and  in 
some  cities  thereof  copies  must  be  served  on  the  op- 
posite party  with  notice  of  the  time  and  place  when 
they  will  be  presented.  The  purpose  of  this  rule  of 
course  is  to  enable  the  opposite  party  to  appear  and 
resist  the  motion  if  he  desires,  and  also  to  present  to 
the  court  or  judge,  at  chambers,  reasons  therefor, 
and  a  brief  of  the  points  upon  which  he  relies  for 
its  resistance. 

It  is  a  general  rule  in  the  so-called  "Code-States," 
and  in  some  others,  that  motions  of  course,  since  they 
do  not  require  the  exercise  of  judicial  discretion,  may 
be  made  to  the  clerk  and  entered  and  acted  upon  by 
him,  the  action  which  he  takes  being  merely  a  formal 
allowance  of  the  motion  when  within  the  terms  of  the 
order  or  rule  of  court.  This  implies,  of  course,  that 
the  clerk  must  examine,  to  see  whether  such  rule  or 
order  has  been  violated  or  complied  with,  and  to  enter 


DRAFTING  COURT  MOTIONS  AND  ORDERS    13 

or  refuse  the  order  sought,  in  accordance  with  this 
compliance  or  non-compliance  by  the  party. 

In  most  courts  the  clerk  is  required  to  keep  a  mo- 
tion docket,  or  book,  upon  which,  in  the  order  of  mak- 
ing them,  the  motion-maker  enters  his  motion  or  rule. 
These  motions  usually  stand  upon  this  docket,  or 
book,  until  the  next  motion-day  following,  which  is 
usually  some  specified  day  of  the  month  or  the  week 
when  the  court  or  judge  hears  this  docket  called,  and 
the  suggestions  or  arguments  of  the  parties,  pro  and 
con,  and  makes  decision  thereof  and  directs  orders 
accordingly,  which  are  entered  by  the  clerk  upon  the 
minutes  of  the  court ;  or,  in  some  states,  upon  the  rule 
docket  kept  for  that  purpose.  A  motion  formally 
entered,  as,  for  a  new  trial,  for  example,  is  in  the 
following  form: 

John  Doe     1 

vs.  V  MOTION  FOR  A  NEW  TRIAL 

Richard  RoeJ 

COMES  the  defendant,  by  attorney,  and  moves  the  Court 
to  set  aside  the  verdict  against  him  in  this  case  and  grant  a  new 
trial,  for  the  following  reasons: 

(1)  Said  verdict  is  against  the  weight  of  evidence. 

(2)  The  deposition  of  Sam  Slack  was  erroneously  admitted 
over  defendant's  objection. 

(3)  The  Court  erred  in  instructing  the  jury  that  defendant 
would  be  liable  to  plaintiff,  even  though  they  found  that  his 
injury  was  the  result  of  the  concurring  negligence  of  himself 
and  his  fellow-servant. 

(4)  Because  the  chaise  of  the  Court  was  not  written  and  a 
copy  thereof  furnished  to  the  jury  when  they  retired  to  con- 
sider the  cause. 

(5)  Because  the  damages  are  outrageously  excessive. 

The  foregoing  form  of  motion  is  a  fair  sample  of 
the  degree  of  particularity  required  in  most  courts 


14  MODERN  AMERICAN  LAW  LECTURE 

of  the  party  making  a  motion  for  a  new  trial,  or  for 
any  other  important  order,  or  any  special  motion  in 
the  case.  Motions  of  course  do  not  require  the  same 
degree  of  particularity,  for  orders  may  be  entered 
upon  them  if  only  they  indicate  the  nature  and  ex- 
tent of  the  action  to  be  taken.  The  motions  for  a  new 
trial  are  the  most  common  and  important  in  use  in 
the  courts  of  law.  The  purport  and  intent  of  this 
motion  is  that  the  most  important,  expensive  and  de- 
cisive step  in  the  case  shall  be  entirely  undone,  the 
time  and  labor  implied  in  their  end  all  lost,  and  the 
experiment  of  a  trial  be  repeated.  Such  action  of 
course  can  only  be  called  for  upon  the  most  cogent 
and  persuasive  reasons,  and,  therefore,  great  particu- 
larity is  usually  required  in  the  statement  of  the 
motion. 

MOTIONS  FOR  REPLEADER 

Similar  results  may  be  obtained  by  similar  motions 
made  in  the  trial  courts.  Of  these,  the  first  to  be 
considered  is  the  motion  for  a  repleader.  This  mo- 
tion is  appropriate  when  the  maker  thereof  conceives 
that  the  case  has  been  tried  upon  an  issue  wholly  im- 
material, or  better,  perhaps,  that  the  pleadings  them- 
selves have  not  resulted  in  a  material  issue.  Such 
immaterial  issue  sometimes  results  from  the  ignor- 
ance or  carelessness  of  the  pleaders,  whereby  the  law- 
yers, failing  to  appreciate  or  understand  the  bone  of 
contention  between  their  clients,  have  so  drawn  their 
pleadings  as  to  result  in  a  side  issue  which  is  not,  or 
should  not,  be  decisive  of  the  case.  When  a  case  is 
tried  upon  such  merely  formal  and  immaterial  issue 


DRAFTING  COURT  MOTIONS  AND  ORDERS         15 

whereby  the  real  facts  of  the  controversy  are  ignored 
(which  does  not  often  happen)  it  is  obvious  that  the 
purposes  of  the  law  in  granting  a  trial  by  jury  of  an 
issue  of  fact  have  entirely  miscarried,  and  the  parties 
are  really  no  nearer  the  end  of  their  contention  than 
at  the  beginning  of  the  suit.  The  only  relief  for  such 
a  deplorable  plight,  of  course,  is  that  the  former 
pleadings  resulting  in  this  immaterial  issue  shall  he 
withdrawn  and  the  parties  shall,  by  attorneys  who  are 
capable,  make  an  intelligent  statement  of  their  ac- 
tions and  defenses  so  as  to  present  for  trial  the  ma- 
terial issues  existing  between  them.  This  result  is 
effected  by  a  motion  for  a  repleader,  that  is,  a  plead- 
ing over,  resulting  in  a  material  issue  and  a  trial 
thereof  which  shall  settle  the  parties'  controversy. 

MOTION  IN  ARREST  OF  JUDGMENT 

This  is  a  formal  motion  open  to  the  defendant  when 
he  conceives  that  the  record  of  the  case,  that  is  to  say, 
the  processes,  pleadings,  and  verdict  do  not  warrant 
or  authorize  the  judgment  entered  by  the  court,  nor, 
indeed,  any  judgment  against  him.  This  motion  is 
generally  made  when  the  plaintiff's  declaration  fails 
to  show  any  sufficient  cause  of  action.  Of  course,  in 
such  case  the  defendant  ought  originally  to  have  de- 
murred to  the  declaration;  but  his  failure  so  to  do 
is  not  a  conclusive  confession  by  him  that  the  plain- 
tiff had  shown  a  good  cause  of  action ;  and  if,  as  mat- 
ter of  fact  or  of  law,  the  plaintiff's  declaration  does 
fail  to  show  a  ground  for  judgment  against  defend- 
ant, judgment  ought  not  to  be  entered  against  him. 
The  verdict  of  the  jury  in  favor  of  plaintiff  does  not 


16  MODERN  AMERICAN  LAW  LECTURE 

help  the  matter — does  not  aid  the  plaintiff's  case; 
it  merely  shows  that  his  declaration  is  true.  But  this 
amounts  to  nothing,  if  it  is  not  sufficient,  if  it  states 
no  cause  of  action  at  law  against  the  defendant. 
Every  proper  presumption,  of  course,  will  be  in- 
dulged by  the  Court  on  this  motion,  to  sustain  the 
action  and  approve  the  verdict  by  proper  judgment ; 
but  if,  even  then,  the  court  can  see  that  the  plaintiff's 
complaint  is  without  legal  foundation,  the  motion  will 
be  sustained  and  the  judgment  arrested. 

MOTION  NON  OBSTANTE  VEREDICTO 

This  motion  in  form  presents  the  phraseology  used 
by  the  English  bar  hundreds  of  years  ago,  when  Latin 
and  Norman  French  were  the  languages  of  the  law, 
instead  of  plain  English  as  now.  It  means  a  motion 
for  judgment  notwithstanding  the  verdict;  a  judg- 
ment contrary  to,  and  in  defiance  of  the  verdict  re- 
turned by  the  jury.  Such  a  motion,  of  course,  calls 
for  an  heroic  remedy.  It  is  made  on  behalf  of  the 
plaintiff,  who  conceived  that,  on  the  trial  of  the  case, 
no  facts  were  presented  which  warranted  a  verdict 
against  him  and  in  favor  of  defendant.  It  generally 
assumes,  if  it  does  not  express,  that  the  verdict  re- 
turned by  the  jury  was  the  result  of  either  ignorance 
or  prejudice,  and  sometimes  of  both  combined.  Cases 
of  this  kind  have  occurred,  and  the  motion  for  judg- 
ment non  obstante  veredicto  has  been  sustained  by 
judges  in  cases  not  a  few.  Illustrations  of  it  are 
found  in  the  reports  of  actions  of  ejectment  brought 
in  the  Appalachian  region  by  grantees  or  patentees 
of  land  holding  a  good  paper  title  against  pioneers. 


DRAFTING  COURT  MOTIONS  AND  ORDERS  17 

or  settlers,  or  squatters,  who  have  taken  possession 
of  land  without  any  warrant  or  title  whatever,  and 
were  relying  solely  upon  their  occupant  rights.  In 
such  cases  it  was  not  uncommon  for  the  jury  of  the 
vicinage  to  render  verdict  in  favor  of  their  neighbors 
and  against  the  stranger  with  the  paper  title.  It  is 
not  hard  in  such  cases  for  the  judge  presiding  to  see 
and  decide  that,  whatever  may  be  the  merits  of  the 
pioneer  who  has  only  the  squatter's  claim,  the  law 
is  obviously  with  the  plaintiff.  In  such  case,  the  mo- 
tion is  usually  allowed  and  the  judgment  pronounced 
by  the  court  in  favor  of  the  plaintiff  non  obstante 
veredicto  in  favor  of  the  defendant. 

UNITED  STATES  SUPREME  COURT  MOTIONS 

The  reports  of  the  decisions  of  the  Supreme  Court 
of  the  United  States  show  many  interesting  cases  of 
motions  made  for  a  summary  disposition  of  cases 
pending  therein  by  appeal  and  writ  of  error.  Mon- 
day of  each  week  is  motion  day  in  the  Supreme  Court, 
and  one  hour  on  each  side  allowed  for  the  argument 
of  a  motion,  the  most  interesting  form  of  which  is 
the  *^ motion  to  dismiss  or  affirm."  The  motions  to 
dismiss  are  based  upon  the  ground  that  the  court  has 
no  jurisdiction  of  the  case;  whereas,  the  motion  to 
affirm  must  rest  upon  the  idea  that  the  court  has  jur- 
isdiction, and,  therefore,  may  affirm  the  judgment 
or  decree  of  the  court  below.  This  double  motion  of 
inconsistent  parts  is  allowed  by  special  rule  of  the 
court  on  the  ground  that,  although  the  record  may 
show  that  the  court  has  jurisdiction,  it  is  manifest 
that  the  writ  of  error  or  appeal  was  taken  for  delay 


18  MODERN  AMERICAN  LAW  LECTURE 

only;  or  that  the  question  upon  which  the  jurisdic- 
tion depends  is  so  frivolous  as  not  to  need  further 
argument.  This  motion  will  oftentimes  bring  about 
the  speedy  decision  of  a  case  which  otherwise  might 
hang  in  court  for  years. 

MOTIONS  AS  ACTIONS 

The  most  interesting  and  important  form  of  mo- 
tions at  law  is  not  included  within  the  general  defini- 
tion heretofore  given,  that  they  are  made  to  ''obtain 
orders  merely  incidental  to  a  pending  suit."  Under 
statutes  in  many  states  actions  of  importance  may  be 
brought  or  instituted  in  the  form  of  motions  merely, 
which  will  authorize  final  judgment  of  weight  and 
importance.  Actions  thus  brought  by  motion  are  in- 
tended to  give  to  parties  of  special  deserving,  or 
against  persons  of  official  delinquency,  summary  rem- 
edies which  will  obviate  the  expense  and  delay  inci- 
dent to  the  ordinary  action  at  law,  or  suit  in  equity. 
Such  remedies,  of  course,  depend  entirely  upon  the 
statute  of  the  State  in  which  the  suit  is  brought,  but 
generally  they  will  be  found  to  be  embraced  within 
the  following  description: 

(1)  Motions  against  sheriffs  or  other  officers  for 
failure  to  make  due  return  of  process  in  their  hands 
for  service. 

(2)  Motions  against  clerks  for  failure  to  issue 
process  authorized  and  required  by  law. 

(3)  Motions  against  these  officers  and  others  hav- 
ing official  custody  of  moneys  belonging  to  the  parties 
to  a  suit,  and  growing  out  of  the  litigation  thereof, 


DRAFTING  COURT  MOTIONS  AND  ORDERS         19 

for  failure  to  pay  over  the  same  as  required  by  law, 
or  by  the  order  of  the  court. 

(4)  Motions  against  county  or  state  trustees  or 
treasurers  for  failing  to  pay  out  public  funds  in  their 
hands  as  directed  or  required  by  law. 

(5)  Motions  against  attorneys  at  law  for  money 
collected  or  received  by  them  and  not  paid  over  to 
the  party  entitled,  according  to  law  and  their  duties. 

(6)  Motions  in  favor  of  sheriffs,  constables,  and 
other  executive  officers  for  judgments  upon  bonds  of 
indemnity,  and  delivery  bonds  given  to  them  to  retain 
or  acquire  property  seized  by  them  imder  legal 
process. 

(7)  Motions  by  sureties,  stayers  and  endorsers 
against  the  principal  for  moneys  paid  by  them  in  dis- 
charge of  obligations  for  which  the  principals  are  pri- 
marily, and  they  only  secondarily,  liable. 

The  object  of  these  motions  is  to  obtain,  not  an  or- 
der, but  a  summary  judgment  for  moneys  which  par- 
ties are  obviously  entitled  to,  without  the  delay  and 
formality  of  pleadings  and  trials.  Such  siunmary 
judgments  are  based  generally  upon  record  evidence, 
or  upon  penal  bonds,  or  upon  official  delinquencies 
so  obvious  and  censurable  as  to  allow  and  require, 
for  justice'  sake,  a  peremptory  and  summary  judg- 
ment, not  only  for  the  sum  really  due,  but  also  usually 
for  exemplary  damages.  Such  motions  against  of- 
ficers usually  include  as  defendants  the  sureties  of 
such  officers  upon  their  official  bonds.  In  many  cases 
above  mentioned,  as,  for  example,  the  failure  to  is- 
sue process  or  to  return  process,  notice  is  not  required 
to  be  given  of  a  motion  made  at  the  ensuing  term  of 


20  MODERN  AMERICAN  LAW  LECTURE 

the  court.  These  summary  judgments  by  motion, 
and  without  the  ordinary  legal  process,  are  provided 
for  and  authorized  by  the  statutes  of  the  state,  usually 
because  of  some  special  merit  of  the  mover,  or  some 
special  demerit  of  the  defendant.  These  special 
merits  or  demerits,  in  the  opinion  of  the  general  as- 
semblies, are  such  and  so  great  as  to  warrant  the  ex- 
ception of  these  special  and  summary  remedies  from 
the  general  rules  requiring  ordinary  process  of  law 
and  due  trial  before  final  judgment  is  pronounced. 
Such  proceedings  do  not  strictly  belong  to  Motions 
and  Orders  because  they  are  not  incidental  and  sec- 
ondary, but  are  in  the  highest  degree  primary  and 
summary.  Space  is  given  them  here,  however,  be- 
cause they  are  included  by  modem  practice  within 
the  scope  of  ** motions"  as  used  and  understood  in 
the  courts  of  the  country. 

OBDEBS 

In  legal  practice  the  word  "order"  is  used  to  de- 
scribe any  written  direction  or  mandate  given  by  a 
judge  or  court  for  the  performance  of,  or  abstinence 
from,  any  act  in  connection  with  the  suit  when  the 
same  is  not  embraced  in  the  final  judgment.  The 
words  used  to  describe  or  designate  various  forms  of 
orders,  with  reference  to  the  stage  of  the  case,  are 
preliminary,  initial,  interlocutory,  and  final. 

A  judge  may  write  and  sign  a  ** preliminary"  or- 
der upon  a  bill  or  petition  presented  to  him  directing 
the  same  to  be  filed,  and  process  issued  thereon,  in- 
cluding therein  also  the  terms  and  conditions  upon 


DRAFTING  COURT  MOTIONS  AND  ORDERS         21 

which  this  is  to  be  done,  and  usually  requiring  some- 
thing to  be  performed  by  the  petitioner,  or  plaintiff. 

"Initial"  is  the  word  used  to  describe  an  order 
made  by  the  judge  or  court,  not  before,  but  after  the 
beginning  of  the  suit,  directing,  in  part,  the  first  step 
to  be  taken  therein  by  the  party  plaintiff.  This  or- 
der is  usually  entered  upon  the  minutes  of  the  court, 
though  in  some  instances  the  judge  may  endorse  such 
order  upon  the  bill  or  petition. 

"Interlocutory**  orders  are  those  made  pending  the 
progress  of  the  case,  and  generally  for  the  purpose 
of  facilitating  the  same,  such  as  an  order  of  refer- 
ence directing  the  clerk,  or  a  referee,  to  hear  the  case, 
or  certain  features  embraced  in  it,  and  report  the 
result  of  his  investigation  to  the  court.  These  in- 
terlocutory orders  are  sometimes  called  "interlocu- 
tory decrees,'*  the  distinction  between  order  and  de- 
cree in  this  connection  being  that  in  the  decree  cer- 
tain matters  pertinent  to  the  execution  of  the  order 
have  been  adjudged  and  determined  by  the  court  as 
the  basis  of  the  reference,  or  report,  while  the  word 
"order**  implies  no  such  decision,  but  merely  a  di- 
rection of  the  court  for  proceeding. 

A  "final  order**  is  one  directing  the  dismissal  or 
termination  of  the  suit,  and  striking  it  from  the  trial 
docket.  Usually  this  final  action  of  the  court  in  the 
cause  is  called  "judgment,**  or  "decree,**  because  it 
generally  decides  or  determines  the  case  upon  its 
merits,  or  some  of  them,  and  distinctly  awards  or  re- 
fuses the  relief  or  remedy  sought  by  the  suit.  Such 
a  decree  or  judgment  usually  embraces  a  recovery  of 
some  property,  or  sum  of  money,  and  awards  final 


22  MODERN  AMERICAN  LAW  LECTURE 

process  for  its  execution.  A  final  order,  however, 
omits  all  matter  of  reason,  or  cause,  for  decision  upon 
the  merits  of  the  case,  and  merely  terminates  the  suit 
by  dismissal. 

An  order  in  a  lawsuit  is  usually  the  response  of  the 
course  to  the  application,  motion,  or  petition  of  a 
party,  either  plaintiff  or  defendant,  and  operates  to 
speed  the  hearing  and  disposition  of  the  same  upon 
its  merits,  or  to  delay  or  prevent  such  decision  ac- 
cordingly as  the  motion  is  made  by  the  plaintiff  or 
the  defendant.  The  right  to  an  order  is  not  the  prop- 
erty of  either  party,  but  may  be  used  by  either,  ac- 
cording to  his  wish  or  need;  and  the  court,  in  mak- 
ing the  order,  will  direct  its  form  and  substance  as 
may  be  made  to  appear  right  and  just  at  the  time. 

A  ** decretal  order"  is  usually  interlocutory,  and 
while  it  directs  something  to  be  done,  it  usually  first 
expresses  some  decision  as  the  basis  of  this  direction, 
as,  for  instance : 

'*It  appearing  to  the  court  in  this  case  that  the 
plaintiff,  as  one  of  the  heirs  of  John  Mann,  was  en- 
titled to  the  possession  of  the  farm  called  "Black 
Acre"  at  the  death  of  his  ancestor,  it  is,  therefore, 
ordered  by  the  court  that  the  defendant,  Asa  Lee, 
executor,  etc.,  surrender  and  deliver  up  the  posses- 
sion of  said  farm  forthwith  to  the  said  John  Mann." 

Orders  are  also  classified  as  "General"  and  "Spe- 
cial," according  to  their  nature  and  the  purpose  in- 
tended and  end  sought  by  them.  A  special  order  is 
one  directing  either  party  to  do  or  perform  some 
particular  act»  such  as  the  one  just  mentioned  in  the 
decretal  order  about  *' Black  Acre."    Such  an  order 


DRAFTING  COURT  MOTIONS  AND  ORDERS         23 

would  also  be  special  if,  instead  of  a  single  farm  it 
should  direct  the  surrender  of  two  farms — "Black 
Acre"  and  "White  Acre;"  for  such  order  gets  its 
name,  not  from  its  singularity,  but  from  its  specialty, 
that  is,  the  particularizing  in  the  order  of  the  objects 
comprehended  within  its  scope. 

A  "general  order"  made  in  a  case  is  one  that  is 
intended  to  control  and  direct,  not  a  single  person  or 
a  single  act,  or  affecting  specified  pieces  of  property, 
but  one  affecting  all  parties  to  the  suit,  or  all  of  a 
certain  class,  and  either  permitting  or  requiring  them 
all  to  do  acts  or  take  steps  in  the  case  of  similar  na- 
ture and  import,  for  example :    ' 

George  Jones 

vs.  GENERAL  ORDER 

Adam  Blake  ' 

"In  this  cause  all  the  defendants  are  allowed  time  until  1st 
July  prox.  in  which  to  file  their  respective  answers,  and  the 
Clerk  is  hereby  directed  to  enter  default  against  all  who  do  not 
file  their  answers  by  that  day." 

There  is  also  a  form  of  order  called  "order  nisi," 
which  is  a  common  form  of  conditional  order  wherein 
some  party  is  specifically  directed  to  perform  some 
specific  act  at  a  specified  date,  unless  some  certain 
thing  shall  happen  before  that  date,  or  unless  he  or 
some  other  person  shall  have  done  something  else 
which  is  recognized  as  a  substitute  for  the  act  spe- 
cifically ordered,  the  word  "nisi,"  meaning  very 
pointedly  "unless." 

An  order  of  frequent  use,  particularly  in  adminis- 
tration cases,  equity  cases,  and  accounting  cases,  is 
an  "order  of  reference."    The  purpose  of  this  is  to 


24  MODERN  AMERICAN  LAW  LECTURE 

refer  all  matters  of  dispute  or  difference  or  claim  ex- 
isting between  the  parties  to  a  clerk,  or  a  master,  or 
a  referee,  or  some  disinterested  person,  for  the  pur- 
pose of  ascertaining  the  facts  by  proof  heard  before 
him  and  reporting  the  result  thereof  to  the  court. 
This  report  is  often  the  basis  of  a  final  disposition  of 
the  cause. 

RESTRAINING  ORDER 

A  common  kind  of  order  in  injunction  suits  is  a 
restraining  order  made  at  the  beginning  of  the  suit 
as  a  temporary  substitute  for  an  injunction  to  be  ef- 
fective and  restrain  the  defendants  until  such  date 
as  is  fixed  for  the  hearing  of  the  application  for  the 
writ  of  injunction.  It  is  a  special  favorite  of  the 
federal  courts  on  their  equity  side,  and  relieves  the 
court  of  the  burden  of  granting  ex  parte  a  writ  of  in- 
junction which  is  intended  usually  to  stand  until  the 
regular  hearing  of  the  cause. 

The  "order  of  revivor"  also  is  one  in  necessary 
and  frequent  use  whenever  a  party  to  the  suit  departs 
this  life.  The  purpose  and  effect  of  this  order  of  re- 
vivor is  to  bring  before  a  court,  in  proper  way,  the 
person  or  persons  surviving  who  represent  in  law  or 
equity  the  rights  and  interests  of  the  deceased  per- 
son, and  to  revive  the  case  in  the  name  of  such  per- 
sons, thereby  making  them  substitute  parties  to  the 
suit,  in  lieu  of  the  deceased. 

The  "consent  order"  is  so-called  from  the  fact  that 
both  parties  have  agreed  that  the  court  may  pro- 
nounce the  order  in  the  cause  and  will,  of  course, 
therefore,  be  governed  by  it  without  further  notice 


DRAFTING  COURT  MOTIONS  AND  ORDERS         25 

or  process.  The  fact  that  it  is,  or  has  been  so  agreed 
to  is  recited  in  the  order  itself,  and  the  parties  are 
thereby  estopped  from  denying  their  consent  thereto. 

Another  frequent  form  of  order  is  the  order  pro 
confesso,  generally  called  merely  "pro  confesso.'* 
This  order  usually  recites  that  it  appears  to  the  court 
that  the  defendant  had  been  duly  served  with  process 
requiring  him  to  appear  and  answer  the  plaintiff's 
bill,  or  suit,  on  or  before  a  certain  day  named,  and 
that  he  has  failed  to  comply  therewith,  or  to  make 
any  defense  in  the  cause.  Wherefore,  it  is  ordered 
that  the  bill,  or  petition,  be  taken  for  confessed  (pro 
confesso)  and  that  the  same  stand  for  hearing  against 
said  defendant  ex  parte. 

The  ** order  of  publication"  is  frequently  made  in 
equity  suits,  or  administration  cases,  and,  as  its  name 
indicates,  directs  the  clerk  to  make  publication  of 
some  fact  pertinent  to  the  case,  or  notice  of  some 
action  to  be  taken  by  the  court,  or  warning  to  some 
persons  interested,  usually  defendant,  to  appear  and 
answer,  or  file  their  claims,  or  do  some  other  things 
which  may  be  to  their  interest,  and  of  which  they 
ought  in  justice  to  be  notified.  This  order  of  pub- 
lication generally  specifies  the  paper  in  which  the 
publication  is  to  be  made,  and  the  number  of  times 
in  which  it  is  to  be  inserted. 

''Order  of  appointment"  is  another  form  and 
style  of  order  necessarily  resorted  to  when  some  de- 
fendant in  the  case  is  under  age,  or  non  compos,  and 
requires,  in  the  view  of  the  law,  some  competent  per- 
son to  make  defense  for  him.  Such  person  is  usually 
called  a  guardian  ad  litem  (for  the  suit)  and  the  or- 


26  MODERN  AMERICAN  LAW  LECTURE 

der  designates  the  person  thereby  appointed  to  this 
position,  and  fixes  the  time  within  which  he  is  to  make 
defense,  and  sometimes  specifies  very  particular  acts 
which  he  shall  do,  as  necessary  to  the  defense  of  his 
ward. 

^^Nunc  pro  tunc''  order  is  the  name  commonly 
given  to  an  order  entered  upon  the  records  of  a  court 
on  one  day  for  some  previous  day  of  the  court — 
*  *  nunc  pro  tunc, "  "  now  for  then. ' '  The  name  *  ^  nunc 
pro  tunc'*  signifies  and  emphasizes  the  fact  that  the 
order  has  been  made  on  a  previous  day  on  which  it 
should  have  been  entered,  and  that  it  is  entered,  not 
made,  now  for  then — ^made  upon  one  day  and  entered 
on  a  later  day. 

A  rule  nisi,  or  an  order  to  show  cause,  is  an  order 
requiring  a  party  to  do  a  certain  thing,  or  to  appear 
and  show  cause  why  it  should  not  be  done  or  per- 
mitted, and  is  oftentimes  the  beginning  of  a  penal 
proceeding,  the  object  of  which  is  to  compel  a  certain 
thing  to  be  done,  or  punish  the  person  for  non-per- 
formance. 

Orders  are  allowable  likewise  for  any  and  all  the 
purposes  expressed  under  the  head  of  motions,  and 
usually  take  their  name  or  style  from  the  nature  or 
purpose  of  the  motion. 

VACATING  ORDER 

This  is  the  name  commonly  given  to  an  order 
whereby  the  court  sets  aside,  or  supersedes,  or  un- 
does, something  directed  by  a  former  order,  so  as  to 
put  the  case,  as  nearly  as  possible,  in  statu  quo. 
Among  the  orders  of  this  kind  will  be  found  **  order 


DRAFTING  COURT  MOTIONS  AND  ORDERS         27 

setting  aside  a  pro  confesso;"  "order  vacating  a  de- 
fault;" "order  annulling  a  penalty;"  "order  vacat- 
ing service. ' '  This  last  is  an  order  whereby  the  court, 
finding  that  a  return  made  by  the  sheriff  upon  some 
process  showing  service  thereof  upon  some  person 
has  been  improperly,  or  irregularly,  or  illegally  made, 
so  as  to  bring  the  person  within  the  jurisdiction  or 
order  or  power  of  the  court,  nullifies  this  return  of 
the  officer  and  declares  it  void,  and  thus  leaves  the 
party  in  the  external  condition  in  which  he  was  be- 
fore the  sheriff  made  this  false,  or  irregular,  or  ille- 
gal service. 

In  short,  an  order  may  be  made  by  the  court  for 
anything  which  it  is  proper  to  enter  a  motion  for; 
and  so  long  as  a  thing  already  ordered  remains  un- 
done, it  is  proper  for  the  court  to  vacate,  or  set  aside, 
its  former  order. 


COURT,  OR  CHAMBERS 

Any  order  may  be  made  in  open  court,  and  all  or- 
ders not  "orders  of  course"  must  be  made  in  open 
court,  unless  authorized  by  statute.  "Orders  of 
course"  are  made  usually  by  the  clerk,  but  are  some- 
times granted  by  a  judge  at  chambers.  It  is  a  gen- 
eral rule  that  notice  must  be  given  before  any  order 
can  be  obtained  from  a  judge  at  chambers.  Orders 
in  court  are  usually  granted  upon  motion  and  with- 
out special  notice,  unless  notice  is  required  by  statute 
or  rule  of  court.  Orders  in  court  are  entered  upon 
the  minutes  of  court.  "When  made  at  chambers  they 
may  be  either  written  by  the  judge  upon  the  petition. 


28  MODERN  AMERICAN  LAW  LECTURE 

or  bill  applying  therefor,  or  upon  some  blank  sheet, 
to  be  copied  by  the  clerk  upon  the  minutes  of  court. 

Every  order  should  be  properly  entitled  of  the 
cause  in  which  it  is  to  be  entered,  and  should  in  due 
and  legal  form  give  direction  for  the  doing  of  the 
thing  which  is  to  be  done.  Unless  this  is  intrusted 
to  the  clerk,  this  order  should  be  prepared  by  the  at- 
torney or  solicitor  for  the  party  obtaining  it;  and 
where  there  is  any  dispute  or  contention  over  its 
form,  this  is  to  be  settled  by  the  judge  or  court,  so 
that  it  may  be  as  intended,  when  delivered  to  the 
clerk  for  entry  on  the  minutes. 

It  is  the  duty  of  the  clerk  to  enter  all  orders  made 
in  court  upon  the  minutes  of  court,  and  many  in- 
formal or  usual  orders  are  so  entered  by  the  clerk 
without  special  assistance  from  anyone ;  but  it  is  the 
privilege  of  counsel  obtaining  an  order  to  make 
formal  draft  thereof  and  deliver  it  to  the  clerk  to  be 
by  him  copied  upon  the  minutes  of  court  and  depos- 
ited in  the  file  or  papers  belonging  to  the  case.  This 
is  called  ''entering  an  order,''  and  should  always  be 
made  on  the  day  when  the  order  is  pronounced. 

In  modem  practice  it  is  not  uncommon  to  require 
service  of  a  copy  of  the  order  upon  the  party  affected 
thereby,  to  the  end  that  he  may  be  duly  notified  of 
the  step  about  to  be  taken.  In  some  cases  this  serv- 
ice is  made  by  the  officer;  in  others,  copy  of  notice 
may  be  delivered  by  the  opposite  party,  or  his  at- 
torney. , 

It  goes  without  saying  that  an  order  may  be 
amended  by  the  court,  making  it  at  any  time  before 
its  execution.    This  is  but  a  small  part  of  that  great 


DRAFTING  COURT  MOTIONS  AND  ORDERS         29 

scheme  and  practice  of  amendment  which  pervades 
all  modern  practice.  This  implies  a  recognition  of 
the  imperfection  of  human  action,  and  a  desire  of  the 
law  for  the  correction  thereof  by  due  amendment. 

An  order,  like  a  judgment  or  decree  of  a  court,  so 
long  as  it  remains  without  change  or  vacation,  is  not 
open  to  collateral  attack;  nor  is  it  to  be  ignored  or 
defied  by  parties,  but  is  to  be  executed  as  a  necessary 
or  proper  step  in  the  administration  of  justice  in  the 
case.  If  the  party  to  be  affected  by  it  wishes  to  avoid 
its  consequences,  he  must  apply  to  the  court,  making 
the  order  for  its  amendment,  suspension,  or  vaca- 
tion. If  he  does  not  do  this,  then  he  must  submit, 
like  a  good  citizen,  to  the  execution  or  enforcement 
of  the  order. 

It  is  a  general  rule  in  nearly  all  the  states  that  any 
application  for  a  change  or  vacation  of  an  order  of 
court  must  be  made  to  the  court  or  judge  making  the 
order;  but  in  some  cases  this  application  may  be 
made  to  the  Appellate  Tribunal,  or  court,  to  which 
an  appeal  lies,  from  the  judgment  or  decree  of  the 
court  pronouncing  the  order.  Whether  the  one  or 
the  other  may  or  must  be  done  is  regulated  by  statute, 
or  the  rules  of  procedure  prevailing  in  the  jurisdic- 
tion. If  there  is  any  doubt  as  to  the  meaning  or  scope 
of  the  order  because  of  defect  or  uncertainty  in  its 
terms,  it  is  always  to  be  construed  with  reference  to 
the  general  object  of  the  case  in  which  it  is  made,  so 
that  it  may  be  in  accordance  therewith,  and  not  in 
contradiction  thereof,  unless  the  motion  is  made  by 
the  defendant  with  the  obvious  purpose  to  delay  or 
defeat  the  suit.    Generally,  indeed,  it  may  be  said 


30  MODERN  AMERICAN  LAW  LECTURE 

that  the  motions  of  the  plaintiff  are  expected  to  ad- 
vance the  suit,  and  those  of  the  defendant  to  obstruct 
it,  and  orders  will,  therefore,  be  interpreted  accord- 
ingly. But  it  is,  of  course,  to  be  understood  that  or- 
ders in  the  case  are  intended  for  the  parties  in  that 
case,  and  are  not  to  be  construed  as  affecting  stran- 
gers to  the  case.  Usually  an  order  will  be  construed 
as  intended  to  operate  and  be  enforced  before  the 
term  of  court  next  succeeding,  for  it  is  to  be  remem- 
bered that  orders  are  incidental  and  inferior  to  the 
main  purpose  and  object  of  the  suit. 

ENFORCEMENT 

We  have  now  come  to  the  important  and  vital  part 
of  an  order,  for  it  is  idle  to  pronounce  orders  or  enter 
them  upon  the  minutes  of  court  unless  they  are  en- 
forced, and  it  is  a  fundamental  rule  of  court  pro- 
cedure that  orders  are  to  be  enforced  according  to 
their  terms.  Where  an  order  directs  the  specific  per- 
formance of  any  act  other  than  the  payment  of 
money,  it  is  to  be  enforced,  in  case  of  a  disobedience, 
by  an  attachment  of  the  party  disobeying,  for  con- 
tempt of  the  order  of  the  court.  This  process,  when 
executed,  will  bring  the  disobedient  party  into  the 
presence  of  the  court,  and  if  he  is  found  in  contempt 
of  the  court's  order,  he  may  be  either  fined  or  com- 
mitted to  jail.  This  committal  may  be  for  a  definite 
period  or  indefinitely  until  he  repents  and  consents 
to  obey. 

If  the  order  is  for  the  payment  of  a  certain  sum 
of  money,  this  is  usually  enforced  by  a  writ  of  ex- 
ecution against  the  property  of  the  person  ordered 


DRAFTING  COURT  MOTIONS  AND  ORDERS    31 

to  make  the  payment;  and  where  this  proves  inef- 
fective and  the  money  is  not  thereby  obtained,  it  is 
proper  and  not  uncommon  for  the  court  to  enforce 
this  order  for  money,  as  others,  by  proceeding  for 
contempt. 

Where  notice  of  motion  is  required,  the  party  no- 
tified, of  course,  may  appear  and  resist  the  applica- 
tion for  an  order,  and  for  that  purpose  he  may  pro- 
duce affidavits  or  other  appropriate  evidence  to  coun- 
teract the  affidavits  or  evidence  offered  by  the  apply- 
ing party.  Arguments  are  also  heard,  pro  and  con, 
by  the  judge,  whenever  it  is  desired  and  proper,  the 
party  making  the  application  usually  having  the 
right  to  open  and  close  the  discussion. 

Decision  of  these  controverted  motions  for  orders 
is  usually  made  promptly  by  the  court,  to  the  end 
that  the  matter  may  be  expedited.  Sometimes,  how- 
ever, where  matters  are  of  importance  and  difficult 
of  solution,  the  court  or  judge  will  take  the  matter 
under  consideration  and  give  his  judgment  at  a  later 
day. 

Motions  and  orders,  in  the  very  nature  of  things, 
must  be  largely  as  to  procedure  in  the  discretion  of 
the  court;  but  if  there  is  statutory  or  peremptory 
rule  for  the  proceeding,  this  supersedes  the  discre- 
tion of  the  court  and  requires  obedience  thereto. 

APPEALS 

Final  orders,  as  matter  of  course,  are  subject  of 
appeal,  like  judgments  and  decrees,  because  they  are 
final.  Generally,  however,  interlocutory  orders  can- 
not be  changed  or  delayed  by  appeals,  but  must  be 


32 


MODERN  AMERICAN  LAW  LECTURE 


obeyed.  In  some  cases,  however,  statutes  provide 
for  appeal  even  of  interlocutory  orders,  where  they 
affect  the  substantial  rights  of  the  party;  and  the 
further  proceeding  in  the  case  is  thereby  suspended 
until  the  decision  of  the  Court  of  Appeals. 


:t'"-A 


dord\ 


GAYL  AMOUNT® 
PAMPHLET  BINDER 

Syracuse,  N.Y. 
Stockton,  Calif.  I 


.BEGONAiUBRA^VF'^^JJ, 


fiiP 


UNIVERSITY  OF  CALIFORNIA  LIBRARY 

Los  Angeles 

This  book  is  DUE  on  the  last  date  stamped  below. 


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